Miss A Beech, Counsel For the v Mr A Williams, Solicitor — 2022

This was a reserved judgment on a preliminary issue heard on 12 November 2021 before Employment Judge K J Palmer sitting alone. Miss O Hutchinson contended that she had been engaged as a beauty therapist under a consultancy agreement dated 5 March 2015 which did not reflect the real arrangement. Rebecca Squires argued that the claimant was self-employed. The tribunal heard evidence from the parties and from Tracey Jordan and Claire Ablitt.

The tribunal found that the written consultancy agreement did not reflect the true relationship. It accepted that personal service was expected and that the substitution clause was never intended to operate in practice. The tribunal also found a significant degree of control by the respondent: the claimant was expected to work during set hours, carry out tasks beyond treatments, wear a uniform, use respondent branding and an email address, work from the respondent's premises, and follow the respondent's systems for holidays, absences, cancellations, fees and pricing.

Applying s.230 ERA 1996 and the authorities it cited, including Autoclenz Limited v Belcher, Uber BV v Aslam and Readymix Concrete (South East) Limited v Minister of Pensions and National Insurance, the tribunal held that the claimant was both a worker and an employee and that the consultancy agreement's self-employed label did not reflect the reality. It therefore held that the claimant's claims for unfair dismissal, wrongful dismissal and unlawful deduction of wages, including holiday pay and sick pay, survived. The claimant's costs application arising out of the postponed September 2021 hearing was left to a further preliminary hearing listed for 11 March 2022.